A fair use primer for online content creators

Fair use wasn't just bolted on to copyright law; it stems from the very …

What happens when a Christian minister tries to sex up Bible reading by creating a "Baby Got Book" parody video? Hilarity, intentional and otherwise, ensues, but lawsuits do not. Why? Fair use. Despite the fact that the popular web video directly parodies the beats, lyrics, and even intro material from the raunchy (and copyrighted) rap "Baby Got Back," the video is not infringing copyright. A new report from the Center for Social Media suggests that many such bits of user-generated content qualify as fair use, even when they contain extensive and direct quotations of copyrighted material.

Record labels and TV studios are concerned about user-generated content, worried that the most popular sites for this sort of material are also bastions of copyright infringement. In an attempt to address the issue, content owners issued a manifesto back in October that laid down "best practices" for automated content filtering. Unfortunately, as we noted in our analysis at the time, the principles pay lip service to fair use concerns but ultimately pave the way for increased corporate control over material that is likely noninfringing. Soon after, the EFF, the ACLU, Public Knowledge and others issued their own set of "Fair Use Principles for User-Generated Content" that were predictably more liberal.

So what's a user who wants to generate content to do? Much of this talk about "fair use" and "best practices" is helpful, but doesn't always give creators the information they need to make decisions about including bits of other copyrighted work in their own compositions. Of course, because fair use law in the US lays out four general principles rather than a host of specific scenarios, creators never "know" that a use is fair until a judge has ruled on it. That's the blessing and curse of the system; while incredibly flexible and open to new situations and technologies, it can also be ambiguous.

"Recut, Reframe, Recycle," a new report from the Center for Social Media out of American University, explores the issues surrounding fair use in user-generated content with the goal of educating users about appropriate behavior. As the report correctly notes, fair use is not some trivial addition to copyright law, but something that stems from US copyright's essential feature: "to encourage the production of culture." Such production "can be encouraged both by providing such incentives as limited ownership rights and such exemptions as fair use."

The authors looked at user-generated content from a host of online sites between September and December 2007. They found that, in contrast to claims sometimes made about user-generated content's popularity, only a minority of clips contained any "discernible copyrighted material." Some of this is simply episodes of the Simpsons or funny bits from The Colbert Report and is unlikely to qualify for fair use, but a "significant body of work" made use of copyrighted material in new ways.

Many of the basic uses of such material are clearly fair use: parody, criticism, commentary, illustration or example. But other uses aren't so clear. Satire, for instance, is less likely to be fair use than parody. Uploading clips simply to trigger discussion is even more "problematic," as the only "transformative" use appears to be posting the video to some sort of online forum. Archiving materials that are old or unavailable can also be a dicey proposition, but it has largely gone "beneath the radar of copyright." Likewise, making a simple pastiche or collage without any parodic "bite" or critical commentary could also land creators in hot water.

Fortunately for the guy who got up on stage to play "Wild Horses" with U2 (and recorded the experience), recording copyrighted material as part of "personal reportage or diaries" seems to be fine.

After providing 16 pages of thoughtful guidance about such matters, the report winds up with a call for the online media community to develop a communal code of best practices that takes both copyright concerns and fair use seriously. Sadly, there isn't currently any such "mature, bonded community of practice" to develop these guidelines yet. Where such a community of practice does exist (such as among documentary filmmakers), the production of communal guidelines for fair use has been helpful to the community and has been given some deference by the courts.